Citation Nr: 1042108
Decision Date: 11/09/10 Archive Date: 11/18/10
DOCKET NO. 07-09 976 ) DATE
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On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois
THE ISSUES
1. Entitlement to service connection for a right ear acoustic
neuroma.
2. Entitlement to service connection for right ear hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The Veteran had active service from September 1965 to September
1969.
This appeal to the Board of Veterans Appeals (Board) arises from
a July 2005 rating action the denied service connection for a
right ear acoustic neuroma and right ear hearing loss.
In April 2010, the Veteran and his wife testified at a Board
hearing before the undersigned Veterans Law Judge at the RO.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claims on appeal has been accomplished.
2. A right ear acoustic neuroma was not shown present in service
or for many years thereafter, and competent and persuasive
medical opinion establishes no nexus between the current
disability and the veteran's military service or any incident
thereof.
3. Right ear hearing loss was not shown present in service or
for many years thereafter, and competent and persuasive medical
opinion establishes no nexus between the current disability and
the veteran's military service or any incident thereof.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right ear acoustic
neuroma are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309 (2010).
2. The criteria for service connection for right ear hearing
loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307,
3.309, 3.385 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) (38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2010)) essentially includes, upon the
submission of a substantially-complete application for benefits,
an enhanced duty on the part of the VA to notify a claimant of
the information and evidence needed to substantiate a claim, as
well as the duty to notify him what evidence will be obtained by
whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition,
it defines the obligation of the VA with respect to its duty to
assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c).
Considering the record in light of the above criteria, the Board
finds that all notification and development action needed to
render a fair decision on the claims on appeal has been
accomplished.
A May 2004 pre-rating RO letter informed the Veteran and his
representative of the VA's responsibilities to notify and assist
him in his claims, and what was needed to establish entitlement
to service connection (evidence showing an injury or disease that
began in or was made worse by his military service, or that there
was an event in service that caused an injury or disease).
Thereafter, they were afforded opportunities to respond. The
Board thus finds that the Veteran has received sufficient notice
of the information and evidence needed to support his claims, and
has been provided ample opportunity to submit such information
and evidence.
Additionally, the 2004 RO letter provided notice that the VA
would make reasonable efforts to help the Veteran get evidence
necessary to support his claims, such as medical records
(including private medical records), if he gave it enough
information, and if needed, authorization to obtain them. That
letter further specified what evidence the VA had received; what
evidence the VA was responsible for obtaining, to include Federal
records; and the type of evidence that the VA would make
reasonable efforts to get. The Board thus finds that the 2004 RO
letter satisfies the statutory and regulatory requirement that
the VA notify a claimant what evidence, if any, will be obtained
by him and what evidence will be retrieved by the VA. See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the U.S. Court of Appeals for Veterans Claims (Court)
held that proper VCAA notice should notify a veteran of: (1) the
evidence that is needed to substantiate a claim; (2) the
evidence, if any, to be obtained by the VA; (3) the evidence, if
any, to be provided by him. As indicated above, all 3 content of
notice requirements have been met in this appeal.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) requires that notice to a claimant pursuant to the VCAA
be provided at the time that, or immediately after, the VA
Secretary receives a complete or substantially complete
application for VA-administered benefits. In that case, the
Court determined that the VA had failed to demonstrate that a
lack of such pre-adjudication notice was not prejudicial to the
claimant. In the matters now before the Board, the May 2004
document meeting the VCAA's notice requirements was furnished to
the Veteran before the July 2005 rating action on appeal.
In the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), the Court held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)
apply to all 5 elements of a service connection claim (veteran
status, the existence of a disability, a connection between the
veteran's service and that disability, the degree of disability,
and the effective date pertaining thereto). In this case, the
veteran's status and the degree of disability are not at issue,
and the RO furnished him notice pertaining to the effective date
information in a January 2007 letter, thus meeting the notice
requirements of Dingess/Hartman.
Additionally, the Board finds that all necessary development on
the claims currently under consideration has been accomplished.
The RO, on its own initiative, has made reasonable and
appropriate efforts to assist the appellant in obtaining all
evidence necessary to substantiate his claims, to include
obtaining all available service and post-service VA and private
medical records through 2004. A transcript of the Board hearing
testimony of the Veteran and his wife has been associated with
the claims folder and considered in adjudicating these claims.
Significantly, the Veteran has not identified, nor does the
record otherwise indicate, any existing, pertinent evidence, in
addition to that noted above, that has not been obtained. The
record also presents no basis for further development to create
any additional evidence to be considered in connection with the
matters currently under consideration.
Under these circumstances, the Board finds that the Veteran is
not prejudiced by appellate consideration of the claims on appeal
at this juncture, without directing or accomplishing any
additional notification and/or development action.
II. Analysis
Under the applicable criteria, service connection may be granted
for disability resulting from disease or injury incurred in or
aggravated by wartime service. 38 U.S.C.A. § 1110. Such a
determination requires a finding of a current disability that is
related to an injury or disease incurred in service. Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992). Service connection also
may be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that it was incurred in service. 38 C.F.R. §
3.303(d).
When a disease is first diagnosed after service, service
connection may nonetheless be established by evidence
demonstrating that it was in fact "incurred" during the
veteran's service. See 38 C.F.R. § 3.303(d);Combee v. Brown, 34
F. 3d 1039, 1042 (Fed. Cir. 1994) (proof of direct service
connection entails proof that exposure during service caused the
malady that appears many years later); Cosman v. Principi, 3 Vet.
App. 503, 505 (1992) (even though a veteran may not have had a
particular condition diagnosed in service, or for many years
afterwards, service connection can still be established); Godfrey
v. Derwinski, 2 Vet. App. 352, 356 (1992).
Where a veteran served continuously for 90 days or more during a
period of war, and an organic disease of the nervous system
becomes manifest to a degree of 10% within 1 year from the date
of termination of such service, such disease shall be presumed to
have been incurred in service, even though there is no evidence
of it during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
For VA benefits purposes, impaired hearing is considered to be a
disability when the auditory threshold in any of the frequencies
of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (db)
or greater; the thresholds for at least 3 of these frequencies
are 26 db or greater; or when speech recognition scores using the
Maryland CNC Test are less than 94%. See 38 C.F.R. § 3.385.
The Veteran contends that his right ear acoustic neuroma is
related to his exposure to noise in military service, and that
his right ear hearing loss is due to exposure to machinegun fire
in service during the course of his duties as a platoon mechanic.
He and his wife gave testimony to that effect at the April 2010
Board hearing.
The service medical records are completely negative for
complaints, findings, or diagnoses of any right ear neuroma or
hearing loss, and the veteran's hearing was 15/15 for the
whispered voice on September 1969 separation examination.
Post service, on examination by D. D., M.D., the Veteran gave a
history of a right acoustic neuroma 22 years ago, as well as
right ear pain and decreased hearing.
On July 2004 VA examination, the Veteran gave a history of an
acoustic neuroma in 1981 and 1982 which required surgery.
On August 2004 VA otolaryngological examination, the Veteran gave
a history of asymmetric right ear hearing loss since the late
1970s, with discovery of a vestibular schwannoma (a benign tumor
of the right 8th cranial nerve) in 1983, for which he underwent a
craniotomy for excision of the tumor. A current audiogram showed
profound right sensorineural hearing loss, with 24% word
discrimination. The physician diagnosed right ear hearing loss
prior to surgery for a vestibular schwannoma, due to neuropathy
from the tumor.
On August 2004 VA audiological examination, the examiner reviewed
the claims folder, service medical records including hearing
tests, and the post-service medical history including surgery for
a right ear acoustic neuroma in 1982 or 1983. Audiometric
testing showed the veteran's hearing on the right in db as
follows: 25, 50, 105+, 105+, and 105+ at 500, 1,000, 2,000,
3,000, and 4,000 Hertz, respectively. The speech recognition
score was 24%. The examiner opined that the veteran's right ear
hearing loss reflected the surgical intervention for the acoustic
neuroma, and that it was not at least as likely as not that the
current hearing loss was related to his military service.
Rather, it was a residual of the post-service surgical procedure
for the removal of the acoustic neuroma.
At the April 2010 Board hearing, the Veteran testified that his
right ear problems began in the mid-1970s.
The aforementioned evidence reveals that the veteran's right ear
acoustic neuroma and hearing loss were first manifested many
years post service, and that the competent and persuasive
evidence establishes no nexus between those disabilities and his
military service or any incident thereof. The competent medical
opinions of record, the 2004 VA opinions, establish that the
veteran's right ear acoustic neuroma and hearing loss had their
onset many years post service, and that the hearing loss was a
residual of the post-service surgical procedure for the removal
of the acoustic neuroma. The Board accords great probative value
to those well-reasoned VA medical opinions, particularly the
audiological examiner's opinion, inasmuch as it was based on her
thorough review of the veteran's military, medical, and post-
service history, and current examination of the Veteran, and the
Veteran has submitted no medical opinion to the contrary.
With respect to the assertions and testimony of the Veteran and
his wife, the Board notes that the Veteran is competent to offer
evidence as to facts within his personal knowledge, such as his
own symptoms. However, at the Board hearing, the Veteran
testified that his ear problems had their onset in the mid-1970s,
many years post service. Moreover, medical questions of
diagnosis and etiology are within the province of trained medical
professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).
Thus, laymen such as the Veteran and his wife, without the
appropriate medical training or expertise, are not competent to
render persuasive opinions on medical matters such as the
relationship between any current acoustic neuroma and hearing
loss, and incidents of his military service. See Bostain v.
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10
Vet. App. 183, 186 (1997) (a layman is generally not capable of
opining on matters requiring medical knowledge). Hence, the
assertions of the Veteran and his wife in this regard have no
probative value.
For all the foregoing reasons, the Board finds that the claims
for service connection for a right ear acoustic neuroma and
hearing loss must be denied. In reaching this conclusion, the
Board has considered the applicability of the benefit-of-the-
doubt doctrine. However, as the preponderance of the evidence is
against the claims, that doctrine is not applicable. See
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1
Vet. App. 49, 53-56 (1990).
ORDER
Service connection for a right ear acoustic neuroma is denied.
Service connection for right ear hearing loss is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs